10,000 Depositions Later Podcast

In this episode, Jim Garrity spotlights a new ruling on a little-known but powerful tool: the use of depositions as affidavits . As Garrity discusses, a deposition does not need to meet the requirements of trial-oriented Fed. R. Civ. P. 32 (which requires a showing that the party against whom the deposition is offered had notice and a chance to examine the deposition) when it is offered in proceed...

In this episode, Jim Garrity applies lessons from a well-known study - on the factors that influence people to cooperate with or resist perceived authority figures - to the deposition process. The lessons will help you better understand deponent perceptions that may be triggering their uncooperativeness. While some elements of the study were considered controversial, other mundane but noteworthy o...

In this episode, Jim Garrity talks about a tactic of some examining lawyers that should, but often doesn’t, draw objections that their questions are “argumentative.” So, what is an improper, argumentative question or examination? Here, we’re not talking about the questioner’s tone or demeanor, i.e., arguing in the classic sense of yelling and bickering with the deponent. We’re talking about questi...

Today Jim Garrity revisits the headaches caused by examining lawyers who frequently interrupt your deponents' answers. To combat this problem, Garrity offers you a six-pronged strategy for stopping this practice and/or creating a strong record that will allow your deponents to later add materially to their interrupted testimony, whether by errata sheet, affidavit, or live testimony. Courts are...

Some examiners will mark a voluminous document as an exhibit and then declare that "we'll go off the record while the deponent reads it." But "going off the record" for this purpose is an unwise practice and is fraught with risks to both the examining and defending lawyer. Jim Garrity explains why.

In this episode, Jim talks about the habit of some deponents of qualifying their answers by using words like think, feel, believe, and presume. These words are known in academic and psychological circles as "linguistic hedges." They're common and harmless in social conversations. But in the unforgiving world of sworn testimony, they create a record suggesting witnesses don't know w...

Have you ever been in a deposition and noticed something improper and prejudicial, but couldn't think of a precise objection to make? There might not be one. For example, many deponents now appear by remote video in unconventional settings - living rooms, hotel lobbies, or their cars - where others are present and may disrupt or influence the testimony. The rules' drafters couldn't pos...

Today Jim Garrity tackles the topic of narrative objections, which are objections that go beyond a simple "Form!" or "Objection!" and provide a concise explanation of the grounds for the objection. Some litigators see anything beyond a single word as a speaking objection or as coaching, but that's not so. Jim untangles the spaghetti in this episode. (By the way, there are a tot...

Today's roundup of new deposition-related cases focuses on four rulings. One offers a great strategy to exclude hostile deponents' deposition testimony, where they answer your opponents' questions but refuse to let you fully and fairly cross-examine them. A second touches on the age-old question of whether "Form!" or "Objection!" is enough or whether you must articulate...

In this episode, Jim Garrity discusses deposition protocol stipulations, which are agreements between the parties that establish the framework for noticing and conducting depositions. They're common in class-action and multi-district cases, but they're useful - and underutilized - in ordinary litigation as well. They can also be used to create internal deposition guidelines for law firms a...

Our depo case digest episodes present a fast roundup of new deposition-related rulings nationwide. Today: (1) Two new rulings on relevance as a basis to instruct a witness not to answer a question, or to halt the deposition for purposes of seeking a protective order; (2) A ruling about a clever way to assure testimony is admissible when you use leading questions in deposing a witness considered &#...

As a result of listener requests, today we add a new kind of show—the Depo Digest episode—to our podcast. These new segments will supplement the regular single-topic deep dives for which we're known. The Depo Digest installments, in contrast, will quickly highlight three or four brand-new rulings of interest to you as a litigator. Jim Garrity explains that our team reviews more than 500 deposi...

According to current cognitive psychology and neuroscience understanding, our memories are multilayered constructs composed of personal experiences and information acquired from external sources. So, when questioning witnesses about their recollections, it's crucial to understand what those layers are made up of. Is it purely personal recollection? Does it include what they were told by others...

In this episode, Jim tackles the problem of 30(b)(6) witnesses showing up with voluminous notes and documents to use in refreshing their memory about the topics to be addressed. Are these witnesses automatically required to give you those notes and materials ahead of time? If not, is there anything you can do to get them beforehand? And, what about getting copies of documents these and other depon...

Do you sometimes send multiple lawyers to depositions? If so, it's important to know how to maximize your odds of taxing each lawyer's fees when you prevail in the action and file your fee petition. As Jim Garrity says, it's easy to avoid traps, but it's also easy to step into them. In this episode he provides bright-line guidance for making your fee petition a successful one. Have...

Jim Garrity's observation is that many litigators are still not using Zoom’s live-caption feature in depositions. This setting is perfect for clients and other participants who want to watch remote depositions, but can’t play audio without disrupting others. It’s also excellent for you or others on your team to ensure you asked the question you planned and got the answer you think you heard. S...

The court ruling in the spotlight today is a reminder that it's critically important to include evidentiary support when you seek a protective order - to relieve a party or witness of the obligation to travel for deposition - based on financial, medical or caregiver reasons. It also reminds us of the importance of providing your judge with the most recent case law, which is trending toward rou...

In this episode we answer a listener who wanted to know how to correct a deposition transcript where the errors were caused by the interpreter, not by the court reporter. It's an important episode, because correcting interpreted deposition testimony requires planning before the deposition begins. As always, Jim Garrity provides invaluable practice tips and strategies. Thanks for listening! SHO...

Charges for deposition interpreters can easily double the cost of the deposition itself. So, who pays, and what's the underlying principle? What if the deponent speaks English but still demands an interpreter? Finally, can courts shift the cost (from one party to another) in some circumstances? All your questions will be answered, in just 19 minutes flat. Today's show notes, like those wit...

In today's episode Jim Garrity answers a question that vexes many litigators relating to corporate representative depositions under Fed. R. Civ. P. 30(b)(6) when the lawyers sharply disagree on the propriety of the topics. Is is better to seek court relief before - or after - the 30(b)(6) deposition? And, assuming it's proper to seek a protective order either before or after, is one better...

In this episode, Garrity points out an important but usually overlooked followup question to ask right after you ask deponents if they took medication that might affect their testimony. Care to guess? (Don't look at the case in the show notes. That's cheating!) SHOW NOTES Stanford v. C.R. Bard, Inc, et al., Case No. 121-cv-00576-DDD-SBP, 2023 WL 9024610 (D. Colo. Nov. 9, 2023) (summary jud...

Today, Jim Garrity talks about a powerful technique for increasing the persuasive impact of deposition testimony that must be read to the trier of fact when a deponent is unavailable. Done properly, according to some lawyers who've used the tactic, it can contribute to victory, without drawing the attention of an opponent. And while you're here, would you mind taking just a few seconds and...

In our never-ending mission to ensure you're never caught off guard, no matter what the tactic, today we address the question whether multiple lawyers on behalf of the same party object during a deposition. As always, we discuss the best strategies when using (or defending against) this tactic, and we provide cases on point in the show notes. Have a great week! SHOW NOTES Webster v. Target Cor...

Why do some courts and lawyers instinctively react to examinations under oath (EUOs), also called sworn statements, as if they're "secret depositions?" When conducted properly, they clearly aren't. But the issue still arises from time to time. In this episode Garrity talks about two recent court rulings. One is from a Florida federal judge that rejected an effort to have the court...

The federal rules and their state equivalents do not authorize reporters to designate a method of recording. But one national court reporting conglomerate has just instructed its reporters to begin videotaping remote depositions as a matter of course, purportedly as "backup media." But given the absence of regulation regarding reporter backup recordings, what should you do to protect your...