10,000 Depositions Later Podcast

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.

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 yo...

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 te...

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...

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 lis...

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....

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 i...

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, "...

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 t...

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 episod...

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 requiremen...

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 fo...

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 t...

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 con...

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 agen...

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...

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 f...

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,...

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 include...

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 Less...

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 hi...

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...

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...

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 bala...

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...